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State Government v. Vishwanath Nidhanji And Ors.
Structured Summary of the Provided Legal Opinion
Factual and Procedural Background
This opinion arises from an appeal instituted by the State Government under Section 417, Criminal P. C., challenging the acquittal of certain respondents by the First Additional Sessions Judge, Amravati. The respondents were tried jointly with three other persons (Balwantsingh, Kamchandra and Chauthmal). The respondents were charged with offences under Sections 396 and 120-B of the Indian Penal Code; the three other persons were tried for offences under Sections 399 and 120-B (as stated in the opinion). One respondent, Champat, also faced a charge under Section 302, I.P.C.
The Sessions Court acquitted the respondents and the three other persons. The State appealed only against the acquittal of the respondents under Section 396, I.P.C., and not against the acquittal of the other three persons.
After admission of the appeal, notices under Section 422, Criminal P.C. were served on three respondents (Maroti Dhobi, Gangaram and Champatrao) but not on Vishwanath. The State applied for a proclamation under Section 87, Criminal P.C. against Vishwanath; the Court issued and ordered publication of that proclamation upon being satisfied that Vishwanath was not found and might be absconding or concealing himself to avoid a warrant being executed.
The Court proceeded to hear the appeal in respect of the respondents who had been served and deferred action in respect of Vishwanath. After hearing and concluding arguments in respect of the served respondents, the Court ultimately allowed the appeal, set aside the acquittal of each of the three respondents who had been before the Court and convicted each under Section 396, I.P.C., sentencing them to rigorous imprisonment for seven years. The appeal in respect of Vishwanath was ordered to remain pending sine die.
Legal Issues Presented
- Whether an appeal against an acquittal can be heard in respect of an accused person who has not been served with notice under Section 422, Criminal P.C., because he is absconding (and only a proclamation under Section 87 has been published).
- Whether publication of a proclamation under Section 87, Criminal P.C., or arrest under a warrant can be treated as a substitute for the mandatory notice required by Section 422, Criminal P.C., in the context of an appeal from an acquittal.
- Whether the appeal may be split so that it proceeds against those respondents who have been properly served while proceedings in respect of an unserved (absconding) respondent are adjourned or kept pending.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Provincial Govt. C. P. & Berar v. Shyamlal — Cri. Appeal No. 253 of 1949, Dated 21-7-1950 (Nag) (A) | The obligation under Section 422, Criminal P.C., to serve notice of appeal on an accused whose acquittal is challenged; the Criminal P.C. does not state procedure where personal service of notice cannot be effected; Section 87 might be used by analogy but only where it is shown the accused has absconded or is concealing himself. | The Court followed the approach used in that case: it proceeded with the appeal against those respondents who had been served and separated the appeal in respect of those who had not been served (i.e., it split the appeal rather than adjourning the whole matter). |
| Supdt. and Legal Remembrancer v. Golok Tikadar (Calcutta High Court decision cited) | Holds that appeals presented against multiple accused may be treated as separate appeals against each accused; it is permissible to hear separately the appeals against those accused who have been served and leave others pending; consolidation for convenience is permissible but not legally necessary. | The Court relied on this decision to justify hearing the appeal against those respondents who had been served and leaving the appeal in respect of the unserved (absconding) respondent pending, rather than adjourning the whole appeal. |
| The State v. Hanumat — Cri. Appeal No. 129 of 1951, Dated 14-3-1952 (Nag) (C) (and subsequent Supreme Court intervention) | In that case the Division Bench of this Court heard and decided the appeal though the respondent had not been personally served (a proclamation was issued) and was represented by counsel engaged by the State Government. The Supreme Court set aside that High Court decision, holding that converting an acquittal into a conviction without serving the notice required under Section 422 was bad; an opportunity must be afforded to the appellant (accused) to contest the appeal. | The opinion treats the Supreme Court's intervention as authority that hearing and deciding an appeal without serving the notice required by Section 422 is impermissible; this precedent supports the view that personal service (or an acceptable substitute under law) is mandatory before an appeal against an acquittal can be heard as regards that accused. |
| Dwarkaprasad v. The State — Criminal Appeal No. 1 of 1950, Dated 6-10-1950 (Supreme Court) | The Supreme Court held that Section 422, Criminal P.C., is mandatory for appeals from acquittal and that arrest under a non-bailable warrant is not a substitute for the notice of appeal; representation by counsel engaged by third parties was held insufficient to deem the accused duly represented for purposes of the appeal. | The opinion cites this decision to reinforce the principle that compliance with Section 422 is an indispensable preliminary to hearing an appeal from an acquittal and that other steps (such as arrest under a warrant or presence of counsel engaged by others) cannot substitute for the statutory notice. |
Court's Reasoning and Analysis
The Court's analysis proceeded in the following steps as set out in the opinion:
- The Court began from the mandatory language of Section 422, Criminal P.C., which "makes it obligatory" to cause notice of appeal to be served on an accused person whose acquittal is challenged. The opinion emphasizes that compliance with this provision is an essential preliminary to hearing such an appeal.
- The Court addressed the situation where personal service cannot be effected. It observed that the Criminal P.C. does not prescribe the procedure for such cases and noted that while Section 87 (proclamation against an absconding person) might be used by analogy, issuance of a proclamation is not equivalent to substituted service of the notice required by Section 422.
- The Court reviewed prior authorities (including Provincial Govt. v. Shyamlal and the Calcutta decision in Supdt. & Legal Remembrancer v. Golok Tikadar) that justify splitting appeals so as to hear an appeal against those accused who have been properly served while leaving the appeal against unserved accused pending. The Court applied that approach here, finding it unfair to keep properly served respondents in suspense.
- The opinion considered authorities (notably The State v. Hanumat and Dwarkaprasad v. The State) where the Supreme Court disapproved of decisions that proceeded to convict in the absence of service under Section 422. Those decisions were used to underscore that absence of service—even when a proclamation has issued or the accused is represented by counsel appointed by others—does not permit the Court to proceed against that accused.
- The Court noted related provisions applicable to trials (Sections 512 and 540A were cited) to illustrate the emphasis courts place on presence or representation of an accused in criminal proceedings. However, it also noted that those provisions do not apply to appeals and therefore do not provide a route to circumvent Section 422's requirements in appeals.
- On that basis the Court concluded that it had no option but to adjourn proceedings "in so far as Vishwanath is concerned" until he is served or appears, while proceeding with the appeal in respect of the respondents who were served.
- Having heard the appeal against the respondents who were served, the Court ultimately allowed the appeal, set aside the acquittals of the respondents who had been before the Court, convicted each of them under Section 396, I.P.C., and sentenced each to rigorous imprisonment for seven years. The appeal in respect of the absconding respondent remained pending sine die.
Holding and Implications
Holding: The Court allowed the appeal in respect of the respondents who had been served, set aside their acquittals, convicted each of them under Section 396, I.P.C., and sentenced each to suffer rigorous imprisonment for seven years. The appeal in respect of the unserved/absconding respondent (Vishwanath) was ordered to remain pending sine die until he is served or appears before the Court.
Implications (as stated by the Court in the opinion)
- The opinion affirms that service of notice under Section 422, Criminal P.C., is a mandatory prerequisite to hearing an appeal against an acquittal in respect of the accused concerned.
- Issuance and publication of a proclamation under Section 87, Criminal P.C., is not equivalent to substituted service of the notice required by Section 422; therefore proclamation alone does not permit the Court to proceed against an absconding accused on appeal.
- The Court confirmed that it is permissible, and at times appropriate, to split an appeal so that proceedings may continue against those accused who have been duly served while the appeal in respect of unserved accused is kept pending, thereby preventing unnecessary delay to served respondents.
- The decision directly affected only the parties before the Court: acquittals of the served respondents were set aside and convictions and sentences were entered. The opinion relied on and applied existing precedents rather than purporting to establish a novel legal rule beyond those applications.
1. This is an appeal by the state Government under Section 417, Criminal P. C., against the acquittal of the respondents by the First Additional Sessions Judge, Amravati. All the respondents were tried jointly along with three other persons, Balwantsingh, Kamchandra and Chauthmal. The respondents were charged with offences under Sections 396 and 120-B, I. P. C. whereas the other three persons, were tried for offences under Sections 399 and 120-B, I. P. O. The respondent Champat was also charged with the offence under Section 302, I. P. C. and tried for the same. The Court of Session acquitted the respondents and other three persons of the offences for which they were tried. The State Government has not appealed from the acquittal of the three persons other than the respondents and has confined its appeal to the acquittal of the respondents of the offence under Section 396, I. P. C.
2. After the admission of the appeal, this Court ordered issue of notices to the respondents under Section 422, Criminal P. C. Notices were served only on respondents Maroti Dhobi, Gangaram and Champatrao but not on respondent Vishwanath.
3. On 16-2-1953 an application was made on behalf of the State for issue of a proclamation under Section 87, Criminal P. C., against Vishwanath. On 24-2-1953 this Court passed the following order on the application:
Shri W. B. Pendharkar for the State and Shri Kotwal for the pauper accused persons are heard. The application for issue of proclamation is supported by an affidavit. As respondent no. 1 Vishwanath was not found, he could not be arrested and the notice under Section 422, Criminal P. C., could not also be served on him. We are satisfied that there is reason to believe that he is either absconding or concealing himself so that the warrant may not be executed. Issue proclamation under Section 87, Criminal P. C., and it be published in the manner laid down in Sub-section (2) of Section 37.
4. The proclamation was reported to have been' duly published and therefore the case was set down for hearing before Hemeon J. and one of us (Choudhuri J.) on 30-6-1953 when the following order was passed:
...The Additional Government Pleader requests one month's time to receive instructions on the point whether the appeal be proceeded with except against the absconding accused - Vishwanath - who is absent though a proclamation was published under Section 87, Criminal P. C., for his appearance in this Court today. One month's time granted.
5. Thereafter the appeal came up before us on 4-8-1953. On that date we ordered that we would hear the appeal in respect of the respondents other than Vishwanath as was done in - 'Provincial Govt. C. P. & Berar v. Shyamlal', Cri, Appeal No. 253 of 1949, D/- 21-7-1950 (Nag) (A) and deferred our order regarding Vishwanath till the conclusion of the hearing of the appeal against Maroti Dhobi, Gangaram and Champatrao. On 12-8-1953, the arguments in the appeal were concluded and we ordered that the appeal with regard to Vishwanath shall remain pending sine die' and that we would give reasons for this direction in our judgment.
6. The course which we followed of splitting up the appeal was, as we have already mentioned, followed by this Court in one case in the past - 'Cri. Appeal No. 253 of 1949, D/- 21-7-1950 (Nag)' (A), in which the Division Bench consisting of Hidayatullah J. and one of us (Mudholkar J.) observed as follows:
Section 422, Criminal P. C., makes it obligatory on the Court to cause notice of appeal under Section 417, Criminal P. C., to be served on the accused person whose acquittal is challenged. The Criminal P. C. does not set out the procedure to be adopted where personal service of the notice cannot be effected on the accused person. What course should be followed in case personal service cannot be effected because the correct address of an accused person is not known, is not a matter which we are required to deal with at the moment. It may be that in such a case the provisions of Section 87, Criminal P. C., could be used by analogy. But even then, it is necessary to show that the accused person has either "absconded" or is "concealing himself" with a view to avoiding service of notice on him. That being the position, the appeal cannot go on in so far as Shyamlal and Champa are concerned. It would, however, be most undesirable to adjourn the whole appeal because such a course will not be fair to the remaining twelve respondents who have already had to appear in this Court a number of times and against whom the appeal has been pending for seven or eight months. We think that the appropriate course to be followed should be the one adopted by a Division Bench of the Calcutta High Court in the case reported in - 'Supdt. and Legal Remembrancer v. Golok Tikadar' . In that case, notices were served only on 40 out of 58 accused persons, and it was argued that as only out appeal had been presented, it could not be heard until all the accused persons named in the memo of appeal had been served. The learned Judges, however, held that there had been in effect 58 appeals against 58 different accused persons and that there would be no legal bar to the separate hearing of the appeal against each separate accused person. They also observed that it was convenient to consolidate the appeals against the appearing respondents though it was not legally necessary so to do. They therefore proceeded to hear the appeal against those of the accused persons who had been served and left over the appeal in so far as those who had not been served were concerned. Accordingly, we proceed with the appeal in so far as respondents other than Shyamlal and Champa are concerned and separate the appeal as against each of these two latter persons.
Here too, it would not be fair to the respondents who are served and represented before us to be kept in suspense regarding their fate till such time as Vishwanath could be found or served with the notice of appeal.
7. Having heard the appeal against the respondents other than Vishwanath we decided to adjourn the appeal 'sine die' in so far as Vishwanath is concerned. The course which we have taken in this case is different from that taken by this Court in - 'The State v. Hanumat', Cri. Appeal No. 129 of 1951, D/- 14-3-1952 (Nag) (C). That was also an appeal by the State Government against the acquittal of the respondent. There was however only one respondent to that appeal. The respondent was not served with a notice of appeal and therefore a proclamation under Section 87, Criminal P. C., was issued by this Court. Evidence was also recorded by this Court that the respondent was absconding. The respondent was represented in this Court by a counsel appointed by the State Government for defending him. This was regarded by the Division Bench consisting of Hemeon and Sen JJ. to be sufficient compliance with the requirements of the law and the appeal was heard and decided by this Court. In the concluding paragraph of the judgment the learned Judges observed as follows:
We may point out that the respondent could not be personally served under Section 422, Criminal P. C., and the warrant of arrest could not be executed as he has absconded. Proclamation was issued under Section 87, Criminal P. C. He has not been arrested so far and has not put in appearance in this Court. Shri Samiullah Khan, an advocate of this Court, was engaged by the State Government as a counsel on his behalf. He argued the case and supported the judgment of acquittal. Steps will be taken by the District Magistrate to arrest him and send him to prison for carrying out the sentence.
8. The respondent then went up in appeal against the decision of this Court to the Supreme Court. Their Lordships set aside the decision of this Court and in the course of the judgment observed:
It is contended on behalf of the appellant that no notice, under Section 422, Criminal P. C., was served on him of the appeal filed by the State Government in the High Court. It is clear from the record that though a notice was issued, it was not served on the appellant as he was not traceable. We are, therefore, of the opinion that the order of the High Court converting his acquittal into a conviction without serving a notice on him, as provided in Section 422, Criminal P. p. is bad and must be set aside. An opportunity must be afforded to the appellant to contest the appeal preferred by the State Government in the High Court. In the result, therefore, we set aside the order of the High Court convicting him on the charge made against him and remand the appeal to that Court for rehearing in accordance with the provisions of law.
9. After the remand of the appeal by the Supreme Court the respondent was actually served, arrested and produced in Court. Thereafter the appeal was heard and decided on merits.
10. There is yet another decision of the Supreme Court in a case which, was taken up in appeal from the decision of this Court. That appeal la - 'Dwarkaprasad v. The State', Criminal Appeal No. 1 of 1950, D/- 6-10-1950 (SC) (D). In that case also the acquittal was set aside by this Court even though notice under Section 422, Criminal P. C., was not served on the respondent. Dealing with the matter their Lordships observed:
One thing, however, is clear, that although it was an appeal from a judgment of acquittal, no notice was served upon the accused as is required under Section 422, Criminal P. C. The provision of the section, as its language shows, is mandatory and a compliance with it an essential preliminary to the hearing of the appeal. The arrest of the accused under a non-bailable warrant cannot be the substitute of a notice of appeal as is required under law. Neither the warrant, nor any return in token of its being executed is in the record and obviously the warrant could not contain the particulars which should be contained in a notice under Section 422, Criminal P. C.
Shri Singhai had appeared in this Court as counsel for the respondent Dwarkaprasad having been engaged by the father of Dwarkaprasad. According to their Lordships this was not sufficient and that the respondent could not be deemed to have been duly represented in the appeal.
11. These decisions of their Lordships leave no doubt whatsoever that before an appeal against an acquittal can be heard against a respondent, he must be served with a notice under Section 422, Criminal P. C. It may be that a respondent may be absconding nevertheless that would be no ground for hearing an appeal in his absence. Where a person accused of an offence is absconding, Section 87, Criminal P. C. empowers the Court to issue a proclamation against him. Issue of a proclamation however is not equivalent to a substituted service. Indeed, as was pointed out in - 'Cri. Appeal No. 253 of 1949, D/- 21-7-1950 (Nag) (A)', the Criminal P. C, does not set out the procedure to be adopted where personal service of the notice under Section 422, Criminal P. C., cannot be effected on the accused person. If an accused person despite proclamation remains absent all that the Court can do is to attach his property. If an accused person was wanted for a trial before a Magistrate or the Court of Session and was absconding, all that could be done would be to record evidence in his absence under Section 512, Criminal P. C. Where the person is not the sole accused taut is tried along with one or more accused persons and is absconding then under Section 540A, Criminal P. C., the Judge or Magistrate has discretion either to adjourn such inquiry or trial, before him. or order that the case of the absconding accused be taken up or tried separately. Of course, neither Section 512 nor Section 540A, Criminal P. C., applies to an appeal. We have referred to them only to show the importance which is attached by the Court to the presence of an accused person in Court or to his representation before it. In our judgment in the absence of a provision which would enable a Court to proceed with an appeal in the absence of an absconding accused we have no option but to adjourn the case in so far as Vishwanath is concerned till such time as he is served or he appears before this Court.
* * *
12. Accordingly we allow the appeal, set aside the acquittal of each of the three respondents, convict each of them under Section 396, I. P. C. and sentence them to suffer rigorous imprisonment for seven years.
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